Under Pennsylvania's child custody statute, 23 Pa.C.S., there are two sections that pertain to standing in order for individuals to bring an action for child custody. Section 5324 provides three categories of individuals who may bring an action for any form of physical or legal custody. The three categories are: (1) a parent of the child; (2) a person who stands in loco parentis to the child; and (3) a grandparent of the child who is not in loco parentis to the child and meets three additional criteria. Under Section 5325, grandparents are provided standing in three additional situations if they are seeking partial physical custody of the child. Prior to the enactment of the new custody act in 2011, ambiguities existed regarding grandparents' rights and grandparents' standing. The new custody act brought clarity to grandparents' rights and grandparents' standing. Basically, only third parties (which include grandparents) who are in loco parentis to the child have the ability to petition for custody in Pennsylvania. However, grandparents are the only third parties who are provided standing in situations when they are not standing in loco parentis to the child.
The recent case of D.G. v. D.B., 2014 Pa. Super 93 (May 2, 2014), provides further analysis of what constitutes standing in loco parentis in order to bring a custody action in Pennsylvania for primary physical custody. The D.G. case pertained to a maternal grandmother (D.G.) seeking primary physical custody of her grandson (E.B.). The opposing party was D.B., the maternal grandmother's daughter (the child's mother).
According to the opinion, previously, the grandmother obtained partial physical custody of the child pursuant to an agreement entered in 2010, after the grandmother commenced a custody action in 2009. In March 2013, the grandmother and her husband filed a petition to modify custody, seeking primary physical custody and joint legal custody of the child. After two days of hearings, the grandmother was awarded primary physical custody of the child and joint legal custody with the mother. The grandmother's husband was not awarded shared legal custody. Following the entry of the order, the mother filed a timely appeal and raised six issues. The Superior Court addressed the mother's first two issues on appeal as they were considered dispositive.
The first issue raised on appeal by the mother was whether the trial court erred as a matter of law when it granted the grandmother standing to sue for legal and primary physical custody by finding that the grandmother stood in loco parentis to the child. The second issue raised on appeal was whether the trial court erred as a matter of law when it granted the grandmother standing to sue for legal and primary physical custody due to the child being substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity. The Superior Court held that the trial court "misapplied the law in finding that the grandmother stood in loco parentis to E.B. [the child] and therefore had standing to pursue this custody action." The Superior Court vacated the trial court's order and remanded the case.
At trial, in loco parentis standing was addressed and examined. Standing regarding the child being at risk was not addressed at the trial, but was raised in briefs on appeal. Therefore, the trial court's record did not contain evidence and an examination in detail regarding whether the child was at risk warranting standing by the grandmother under Section 5324(3). The in-depth analysis regarding standing in the D.G. case focuses on in loco parentis standing.
The trial court found that the grandmother had standing because she stood in loco parentis to the child. In analyzing in loco parentis, the Superior Court stated as follows: "The phrase 'in loco parentis' refers to a person who puts himself in the situation of assuming the obligation incident to the parental relationship without going through the formality of a legal adoption." The Superior Court further stated: "The status of 'in loco parentis' embodies two ideas: first, the assumption of a parental status, and second, the discharge of parental duties." The Superior Court further reminds that in loco parentis must begin with the consent of the parents.
According to the opinion, the grandmother resided with the mother and the child throughout the child's life, including two periods of extended stays that lasted in excess of four months apiece. However, during the period of time when the mother, grandmother and child lived together, the mother and the child would sleep at night in a camper at the grandmother's residence. According to the opinion: "Also during the periods of combined residence, the grandmother provided financial assistance, did cooking and laundry for the mother and [the child], bathed [the child] and cared for [the child] while the mother was away." The opinion reflects that the grandmother provided this assistance at the request of the mother.
In concluding that the grandmother stood in loco parentis to the child, "The trial court reasoned that the grandmother has filled the void left by [the child's] father, who has never been involved in his life." The Superior Court analyzed a number of in loco parentis standing cases. The Superior Court stated: "Nothing in the record indicates that the parties ever intended for mother and [the child] to reside permanently with grandmother." Further, the record reflects that the grandmother assisted the mother and the child in moving out of the grandmother's home. The Superior Court cited that as being strongly inconsistent with an assumption of full parental responsibility. The Superior Court found that the periods of co-residence with the grandmother, mother and the child were tantamount to the grandmother assisting the mother and child in a time of need as opposed to the grandmother's informal adoption of the child. The Superior Court found that the grandmother's actions were not consistent with an intent to assume all of the rights and responsibilities of parenthood. Therefore, the Superior Court found that the grandmother did not stand in loco parentis to the child.
The D.G. opinion further highlights "examples of mother's irresponsible behavior and poor parenting skills." According to the opinion: "The mother often fails to wake [the child] up and ensure that he eats breakfast and gets to school. Sometimes, upon arriving home from school, [the child] is locked out of his apartment and has to await mother's return. [The child] was absent 27-and-a-half days and tardy four times during the 2011-12 school year, though mother attributed most of those absences to his illness, which was particularly severe at the time. The child's condition has been improving and requiring fewer hospital visits." Further, the mother's previous boyfriend of four years had a criminal record for aggravated assault and the relationship ended after a domestic violence incident. There is also a history of the mother not having an automobile. According to the opinion, the mother underwent a court-ordered mental health evaluation, which concluded that the "mother's psychological issues including paranoia, depression and anxiety required ongoing treatment. Nonetheless, the psychologist testified that mother was capable of caring for [the child] and would not harm the child." Because the trial court did not analyze the grandmother's standing under Section 5324(3)(iii)(B), which pertains to whether the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity, the record was not developed enough to indicate whether the child was substantially at risk.
Therefore, the Superior Court remanded the case to the trial court to assess whether the grandmother has standing to proceed under the at-risk factor. The Superior Court also vacated the trial court's custody order.
This is an important case for the family law practitioner in that it further refines what qualifies for in loco parentis standing. There is a fine line between helping one in need and assuming all of the rights and responsibilities of parenthood. In reading this case, the test appears to be leaning more strongly toward "informal adoption" when analyzing in loco parentis standing. A further lesson to be learned from the D.G. case is that a grandparent qualifying for standing to obtain partial physical custody under Section 5325 (which is a form of standing reserved only for grandparents) does not automatically confer standing to a grandparent later seeking primary physical custody, as there are different tests and standards for each form of standing. This delineation only exists for grandparents as all other third parties can only obtain standing if they are in loco parentis to the child.
Michael E. Bertin is a partner at the law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-author of the book "Pennsylvania Child Custody Law, Practice, and Procedure." Bertin is the immediate past chair of the family law section of the Philadelphia Bar Association, co-chair of its custody committee, and chair of the rules committee and member of council of the family law section of the Pennsylvania Bar Association.
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Reprinted with permission from the July 8, 2014 edition of THE LEGAL INTELLIGENCER © 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 347-227-3382, firstname.lastname@example.org or visit www.almreprints.com. # 201-07-14-01